The last thing anyone should think about WDTX is that it is patent plaintiff friendly, says Albright 1 IAM
`
`•
`.. -
`
`The last thing anyone should think about WDTX is that it is patent
`plaintiff friendly, says Albright
`Yesterday we ran the first gart of our exclusive interview with Judge Alan D. Albright who, in less than two years on the Western District of Texas
`bench, has become one of the US's busiest patent judges. Today we publish Part Two of the interview. In this, Albright offers his views on some
`of the thorniest issues affecting the US patent system, including the PTAB and 101. He also reveals where his penchant for listening to audio
`recordings of briefs came from and picks his favourite Supreme Court argument.
`
`RL:
`
`You're one of the judges who hears a Jot of patent cases who has tended not to stay cases pending a PTAB decision - why is that?
`
`JA: You know, I have done that because I think that people have a constitutional right to assert their patent. I mean, patents are in the
`Constitution, the right to a jury trial is in the Constitution. I am not taking away anyone's right to go to the PTAB, but I think people ought to have a
`jury trial.
`
`Would you rather that more questions of validity were handled in district court rather than at the PTAB?
`
`I don't have any problem with the idea of the PTAB handling validity issues, but I w ill say this: I think juries are very w ise and I think we can count
`on them to make the right decisions if they are provided with the right evidence. So, I have great faith in the juries on every issue.
`
`One of the things you are becoming known for is liking your briefs in audio file format as well as hard copies. Are you a big audiobook fan or a
`radio fan? Why audio in particular?
`
`So, what happened is this: when I was going through the process to become a judge, one of the steps you go through is you sit in front of the
`Senate Judiciary Committee, and the Comm ittee can ask you some tough questions. You know, occasionally, they would get a lawyer in there and
`they wou ld say, what about this legal issue such as "what do you think about a Pullman abstention?" Well, no lawyer has dealt with Pullman
`abstentions recently. And so, I was afraid someone would say to me: "How do you feel about the 19th Amendment?" Given my nature, I probably
`wou ld say: "It's my favourite." But I thought I ought to know a little about all of them.
`
`So, what I did was for each Constitutional amendment, I went and listened to two or three of the leading Supreme Court audio arguments that had
`to do with that Constitutional amendment in some way, and so if they asked me a question on the spot in front of everybody, I would at least be
`able to say, "The 19th amendment had to do w ith a women's right to vote," and know what it was. And so, I found that I got hooked and literally,
`since 2016, I have listened to every Supreme Court argument that they have. And I found that I learn pretty well that way.
`
`I also commute once a week between Austin and Waco and so, if I am commuting back home to Austin on Thursday before a Markman on Friday,
`I have found that if I have an audio version of the brief, I would have read the brief already but then, if I listened to the audio version on the drive
`home, number one, it makes the drive home more pleasant, but also, the next day, it is like I have had a double scoop of the learning. And I just felt
`like I am more familiar with the case by doing it that way
`
`Is there any Supreme Court case that you particularly recommend to listen to, be it a patent case or anything else?
`
`Oh boy! I'll tell you, for sure, one of the most amazing ones was from 2018, I believe. It was the one that had to do with whether or not states
`should be able to charge taxes on internet sales [South Dakota v Wayfait}. I guarantee you, if you listen to that, at the end of each lawyer's
`arguments, you are going to think that's absolutely right, there is no possible way the other guy can w in. That one is a pretty amazing case. And
`there is a lawyer at Kirkland & Ellis named Paul Clement who has now done 100 arguments and I have listened to every one of those that is
`available on tape. And he and [Gibson Dunn's] Ted Olson are probably my two favourites.
`
`You are probably aware from your days as a trial attorney that some districts get a reputation as being plaintiff friendly. Would you worry if you
`were to be seen in that way?
`
`I am glad you asked me that. In every single talk I have ever given since the first time I started talking about this, I have tried to make it as clear as
`possible that the last thing anyone should think about this venue is that it is plaintiff friendly. Not only because I just generically don't like that idea
`but, you know, we are in an era when defendants can have a lot of reasons to try and transfer cases, and I never saw that it was very beneficial to
`me in wanting to get a lot of good quality patent cases to get a reputation of being plaintiff friendly in such a way that every defendant who got
`sued in my court would fi le a motion to try and get out of it.
`
`I thought that was the worst possible thing that could happen. So, every single t ime I have ever given a talk to anybody, I have tried to stress that
`what I am hoping the people are going to get from my court is someone who had 20 years of experience handling patent cases and handled a fair
`number of patent trials to verdict - but also handled them on both sides of the docket. I want every party that comes out of my court to feel like I
`was scrupulously fair.
`
`Again, the way I put together the [procedures] committee in the beginning, when I was asking people to be on it, I went crazy trying to make
`absolutely sure that every conceivable type of patent litigant would be represented. I don't know what the breakdown is anymore between big
`firms and little firms but everything I do, I run by them. Every conceivable interest is involved to make sure that whatever I do is fair to everybody
`that could either sue or be sued in my court. And you asked was I going to keep the committee intact? Not only that but, frankly, I continue to
`
`https://www.iam-media.com/law-policy/albright-the-last-thing-anyone-should-think-about-venue-it-plaintiff-friendly
`
`1/2
`
`MemoryWeb Ex. 2017
`Samsung v. MemoryWeb – IPR2022-00222
`
`
`
`•
`.. -
`
`The last thing anyone should think about WDTX is that it is patent
`plaintiff friendly, says Albright
`Yesterday we ran the first gart of our exclusive interview with Judge Alan D. Albright who, in less than two years on the Western District of Texas
`bench, has become one of the US's busiest patent judges. Today we publish Part Two of the interview. In this, Albright offers his views on some
`of the thorniest issues affecting the US patent system, including the PTAB and 101. He also reveals where his penchant for listening to audio
`recordings of briefs came from and picks his favourite Supreme Court argument.
`
`RL:
`
`You're one of the judges who hears a Jot of patent cases who has tended not to stay cases pending a PTAB decision - why is that?
`
`JA: You know, I have done that because I think that people have a constitutional right to assert their patent. I mean, patents are in the
`Constitution, the right to a jury trial is in the Constitution. I am not taking away anyone's right to go to the PTAB, but I think people ought to have a
`jury trial.
`
`Would you rather that more questions of validity were handled in district court rather than at the PTAB?
`
`I don't have any problem with the idea of the PTAB handling validity issues, but I w ill say this: I think juries are very w ise and I think we can count
`on them to make the right decisions if they are provided with the right evidence. So, I have great faith in the juries on every issue.
`
`One of the things you are becoming known for is liking your briefs in audio file format as well as hard copies. Are you a big audiobook fan or a
`radio fan? Why audio in particular?
`
`So, what happened is this: when I was going through the process to become a judge, one of the steps you go through is you sit in front of the
`Senate Judiciary Committee, and the Comm ittee can ask you some tough questions. You know, occasionally, they would get a lawyer in there and
`they wou ld say, what about this legal issue such as "what do you think about a Pullman abstention?" Well, no lawyer has dealt with Pullman
`abstentions recently. And so, I was afraid someone would say to me: "How do you feel about the 19th Amendment?" Given my nature, I probably
`wou ld say: "It's my favourite." But I thought I ought to know a little about all of them.
`
`So, what I did was for each Constitutional amendment, I went and listened to two or three of the leading Supreme Court audio arguments that had
`to do with that Constitutional amendment in some way, and so if they asked me a question on the spot in front of everybody, I would at least be
`able to say, "The 19th amendment had to do w ith a women's right to vote," and know what it was. And so, I found that I got hooked and literally,
`since 2016, I have listened to every Supreme Court argument that they have. And I found that I learn pretty well that way.
`
`I also commute once a week between Austin and Waco and so, if I am commuting back home to Austin on Thursday before a Markman on Friday,
`I have found that if I have an audio version of the brief, I would have read the brief already but then, if I listened to the audio version on the drive
`home, number one, it makes the drive home more pleasant, but also, the next day, it is like I have had a double scoop of the learning. And I just felt
`like I am more familiar with the case by doing it that way
`
`Is there any Supreme Court case that you particularly recommend to listen to, be it a patent case or anything else?
`
`Oh boy! I'll tell you, for sure, one of the most amazing ones was from 2018, I believe. It was the one that had to do with whether or not states
`should be able to charge taxes on internet sales [South Dakota v Wayfait}. I guarantee you, if you listen to that, at the end of each lawyer's
`arguments, you are going to think that's absolutely right, there is no possible way the other guy can w in. That one is a pretty amazing case. And
`there is a lawyer at Kirkland & Ellis named Paul Clement who has now done 100 arguments and I have listened to every one of those that is
`available on tape. And he and [Gibson Dunn's] Ted Olson are probably my two favourites.
`
`You are probably aware from your days as a trial attorney that some districts get a reputation as being plaintiff friendly. Would you worry if you
`were to be seen in that way?
`
`I am glad you asked me that. In every single talk I have ever given since the first time I started talking about this, I have tried to make it as clear as
`possible that the last thing anyone should think about this venue is that it is plaintiff friendly. Not only because I just generically don't like that idea
`but, you know, we are in an era when defendants can have a lot of reasons to try and transfer cases, and I never saw that it was very beneficial to
`me in wanting to get a lot of good quality patent cases to get a reputation of being plaintiff friendly in such a way that every defendant who got
`sued in my court would fi le a motion to try and get out of it.
`
`I thought that was the worst possible thing that could happen. So, every single t ime I have ever given a talk to anybody, I have tried to stress that
`what I am hoping the people are going to get from my court is someone who had 20 years of experience handling patent cases and handled a fair
`number of patent trials to verdict - but also handled them on both sides of the docket. I want every party that comes out of my court to feel like I
`was scrupulously fair.
`
`Again, the way I put together the [procedures] committee in the beginning, when I was asking people to be on it, I went crazy trying to make
`absolutely sure that every conceivable type of patent litigant would be represented. I don't know what the breakdown is anymore between big
`firms and little firms but everything I do, I run by them. Every conceivable interest is involved to make sure that whatever I do is fair to everybody
`that could either sue or be sued in my court. And you asked was I going to keep the committee intact? Not only that but, frankly, I continue to
`
`https://www.iam-media.com/law-policy/albright-the-last-thing-anyone-should-think-about-venue-it-plaintiff-friendly
`
`1/2
`
`MemoryWeb Ex. 2017
`Samsung v. MemoryWeb – IPR2022-00222
`
`
`
`The last thing anyone should think about WDTX is that it is patent plaintiff friendly, says Albright | IAM
`
` gure out ways of slightly improving this or that. If something comes up and I am, like, oh wow, that didn't work as well as I was hoping it would,
`my way of dealing with that is to pop it over to the committee and if we make a change, then the change is broadcast to everyone that is on the
`email list.
`
`Patent law is big business for a lot of companies in terms of jury awards and settlements and it can lead to a high pro le for district judges like
`yourself. We saw that ve or six years ago particularly in regard to some judges in East Texas who had a huge share of the universe of patent
`cases before them and it became a point of policy discussion in DC. Would you be concerned if there were greater scrutiny, for example, of how
`you were managing your docket, and if it were to continue to grow a senator saying, "How can it be right? Some judge in Western Texas who’s
`got 800 patent cases? How does this make sense? We've got to do something."
`
`I would invite anyone who is interested in that to call me or look at everything I have put online or all the effort that I have put in. I don't know that
`I've ever worried about that speci c issue happening but I can tell you that I think, again, that is why every single thing I have ever done in terms of
`anything with my patent docket has been making every effort I can to ensure that no party would ever feel like they were advantaged or
`disadvantaged to being here.
`
`Now, I am not naïve, I think if I were an average plaintiff, would I prefer a docket that at least currently could get me to trial in under two years?
`Yeah, I think if I were a plaintiff, I think that is something I’d like. And so, I think how quickly I get to trial certainly makes this a place that is
`attractive for people to le cases in. But if someone wants to criticise a federal judge for trying to get cases to trial too quickly, then I guess I'll just
`have to live with that.
`
`I have tried to be realistic. For example, an 18-month to 20-month window from ling to trial, I personally don't think of that as a rocket docket. I
`mean, people have a full six months to prepare for the Markman, it is not like you are going to trial in six months after ling. And, by the way, I
`make it very clear to everyone that in a case that, for example, has 19 patents I would certainly be wide open to any number of discussions about
`how to proceed. That is not a normal patent case as it were, right? And so, that kind of case might get broken up into smaller cases with families
`of patents and we would set different trial dates. I am not for putting form above fairness.
`
`But, obviously, as a plaintiff I think having a trial in under 20 months, is a good thing. If I were in a company that was a defendant, I would think
`that having almost absolute predictability about every phase of what is going to happen between ling and the trial, which you get in my court,
`would also be a good thing. You know, I could take any garden-variety case I have right now and you can tell in X number of months about where
`the case should be in terms of getting ready for trial.
`
`In patent circles, there is a lot of discussion at the moment about the state of case law around 101 and we see the Federal Circuit grappling
`with it on a regular basis. Do you think there is now clarity?
`
`Let's just say if there is clarity, I'm still working to nd it. Every 101 motion that is led in my court, we carefully review but the great likelihood in
`my court is that I won't take up a Section 101 motion until after a Markman in the form of a motion for summary judgment.
`
`You are still to have your rst jury trial in a patent case, right?
`
`You know, I've had to reschedule at the parties’ request everything I have had and I am no longer overly optimistic that my May trial will hold with
`this situation. I would sure like to get one under my belt. We have a trial set in July, that we are pretty certain is going to go forward. So, that's the
`most likely rst patent trial I think we have.
`
`Richard Lloyd
`Author | Editor
`richard.lloyd@lbresearch.com
`
`TAGS
`Law & Policy, Litigation, Patents, Aerospace, Arti cial Intelligence, Automotive, Banking & Financial Services, Chemicals, Computers &
`Software, Energy and natural resources, Industrials, Internet, Internet of Things, Life Sciences, Media & Entertainment, Mobile Communications,
`Security Systems, Semiconductors, Telecommunications, University & Research Institutions, North America, United States of America
`
`https://www.iam-media.com/law-policy/albright-the-last-thing-anyone-should-think-about-venue-it-plaintiff-friendly
`
`2/2
`
`MemoryWeb Ex. 2017
`Samsung v. MemoryWeb – IPR2022-00222
`
`
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